Court supervision after Padilla v. Kentucky.
In a misdemeanor retail theft case, a prosecutor agrees to recommend six months of non-reporting court supervision if your client pleads guilty. Illinois law states in relevant part: " [A] successful conclusion of a disposition of supervision shall be deemed without adjudication of guilt and shall not be termed a conviction...." (1)
You've explained to your client that if he "keeps his nose clean" he can walk away without a conviction on his record. Your client accepts the offer and is discharged after six months.
This scenario plays out daily in misdemeanor courtrooms throughout Illinois. It's not unusual for a client to have multiple dispositions of court supervision in his background.
But if your client is eventually convicted of a federal crime, he could learn the hard way that federal law treats his "successfully" concluded state supervision as a prior conviction. The potential consequences include a lengthy imprisonment.
Federal judges must consult the United States Sentencing Guidelines. (2) Using these guidelines, they score myriad offense and criminal history factors, then apply a sentencing table to the defendant's score, which yields a specific and relatively narrow sentencing range. Until 2005, the guidelines were mandatory. (3) They are still very important to federal sentencing.
In a case of two defendants, all else being equal, the defendant with the higher criminal history "score" could receive harsher punishment. Under the guidelines, criminal history has a significant leveraging effect. A relatively minor defendant with a serious criminal history might face a longer sentence than a more culpable, but comparatively "clean" co-defendant.
State-court supervision and federal law
Federal sentencing guidelines. The guidelines assign one criminal history point to a "prior sentence" of less than 60 days imprisonment, up to a maximum total of four points for such items. (4) A "prior sentence" is a sentence "previously imposed upon adjudication of guilt." (5) A diversionary sentence, such as court supervision, counts "where there is a finding or admission of guilt in a judicial proceeding." (6) The judge will count a diversionary sentence "even if a conviction is not formally entered," based on a "policy that defendants who receive the benefit of a rehabilitative sentence and continue to commit further crimes should not be treated with further leniency." (7)
In United States v Burke, the seventh circuit acknowledged the above-quoted Illinois rule, which holds that successfully completed court supervision will not be treated either as an adjudication of guilt or a conviction, but dismissed the rule as "no moment to our analysis of the Guidelines. The Guidelines are federal law. They do not rely on state definitions or labels." (8) A federal judge independently evaluates the defendant's past, the court opined:
[W]hen a case is dismissed after supervision, the court does not wave a magic wand to erase the defendant's criminal conduct from the time-space continuum. Dismissal may give a petty criminal a break for certain purposes under state law, but it does not compel us to pretend that the wrongdoing for which he was found culpable never occurred. And it is the fact of that prior wrongdoing, not how the judicial disposition is labeled, which matters in calculating criminal history. (9)
To date, the seventh circuit has rejected every guidelines argument that has been advanced by a defendant to reduce the harsh consequences of an increased criminal history score. (10)
Potential adverse consequences of "successfully concluded" supervision. Let's assume your former client pleads guilty in a federal drug case alleging conspiracy involving more than 50 grams of crack cocaine. He only played a minor role, but under federal law faces a mandatory minimum prison term of 10 years. (11) Some federal defendants can take advantage of a statutory "safety valve," (12) authorizing a below-minimum sentence, but an eligible defendant can't have more than one criminal history point.
United States v Jones represents the nightmare scenario for a defendant whose background includes more than one "successful" court supervision. Jones "had a history of small-time crime involving retail theft and possession of marijuana," and "correspondingly small-time penalties," consisting of court supervision dispositions ranging from six to 12 months. (13) He pleaded guilty to a crack offense involving more than 50 grams. Jones' prior dispositions left him with more than one criminal history point, making him ineligible for the safety valve and subject to the 10-year minimum.
In affirming Jones' sentence, the seventh circuit found the controlling factor in each state case to be the "adjudication of guilt." (14) In short, under the guidelines, a guilty plea made in exchange for court supervision gets counted.
Even for federal defendants who don't face mandatory sentencing, the leveraging effect of assigning a single criminal history point to a diversionary disposition of supervision can be felt. Based on his criminal history point total, a defendant gets assigned to one of six criminal history categories of increasing severity.
For example, a first time offender (Category I) convicted of residential burglary involving a loss of less than $2,500 (15) faces an advisory sentencing range of 24-30 months; a defendant in the highest category (Category VI) faces 51-63 months' imprisonment for the identical crime. The addition of a single point can push a defendant into a higher criminal history category, thereby suggesting he ought to receive harsher punishment.
A defendant who commits a federal offense while under a criminal justice sentence automatically gets two criminal history points. (16) In United States v Binford, (17) a defendant, who was on state court supervision for illegal transportation of alcohol when he committed his federal crime received a total of three criminal history points relating to this misdemeanor, the same score as a person with a prior felony conviction resulting in a prison term of more than a year.
Using this guideline provision, a federal prosecutor familiar with his target's criminal history could use the timing of the arrest to inflate the criminal history score. In United States v Burke, (18) federal authorities arrested the defendant on drug charges while he was serving state court supervision for driving without a license, a circumstance that resulted in the assignment of two criminal history points. In an unsuccessful effort to move the clock back in his favor, one enterprising defendant actually got his state judge to issue his order nunc pro tunc. (19)
For a defendant who is subject to mandatory minimum sentencing, the timing of his arrest alone can make him ineligible for the safety valve. In such cases, short of outright acquittal, his only viable option may be to provide the government with "substantial assistance," that is, cooperation against others in exchange for the government's motion at the time of sentencing, authorizing the judge to go under the statutory minimum. (20)
A defendant who lacks wherewithal to cooperate because, as a low level functionary, he wasn't "in the know," could end up serving more time than a more culpable co-defendant, whose ability to give useful information derives from his position as a boss.
Seventh circuit: supervision does not constitute expungement. Under the federal sentencing guidelines, "sentences for expunged convictions are not counted" in calculating criminal histories. (21) However, in United States v Stowe, (22) the seventh circuit rejected the argument that a defendant's successful completion of court supervision constitutes expungement.
Federal defendants can't collaterally attack prior state convictions used to enhance their sentences. (23) In rare instances, a lawyer might act diligently to get a state court order vacating such a prior conviction, which could constitute a new "fact" that entitles the defendant to file a federal habeas petition. (24)
Fortunately, Illinois has an expungement procedure and lawyers representing misdemeanor defendants should have a thorough grasp of it. Basically, if a person is released without being convicted of a criminal offense, a judge "may" order the matter expunged. (25) The Illinois Supreme Court has ruled that judges possess broad discretion in expungement. (26)
The implications of misinforming clients about the consequences of supervision
Ineffective assistance of counsel. Does a lawyer advising a client to plead guilty in exchange for court supervision render ineffective assistance if he either fails to disclose or misinforms his client about the potential adverse consequences of the plea discussed in this article? No, the cases tell us, unless the adverse consequence is deportation (see the discussion in the next subsection).
Strickland v Washington (27) holds that to sustain a claim of ineffective assistance under the Sixth Amendment, an aggrieved client must show (1) that his lawyer's actions were objectively unreasonable and (2) a reasonable probability that, but for the attorney's unprofessional errors, the result of the proceeding would have been different. In a guilty plea context, the defendant must show "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." (28)
Since federal law requires every defendant to "have full awareness of the plea's 'direct consequences,'" defined as the "'immediate, and automatic consequences'" of the guilty plea, (29) it is objectively reasonable to require lawyers to give accurate advice. However, the seventh circuit refused to let a defendant withdraw his guilty plea because his lawyer hadn't told him that pleading guilty would mean he must register as a sex offender. The court reasoned that registration was a collateral consequence of the plea but held that the Sixth Amendment right to counsel does not reach such consequences. (30)
The seventh circuit recognizes a lawyer's duty "to learn all of the facts of the case, make an estimate of the likely sentence, and communicate the result of that analysis before allowing the client to plead guilty." (31) In United States v Martinez, however, it concluded that a lawyer's failure to tell a client he was ineligible for a prison boot camp program "did not serve his client well," but wasn't ineffective. (32)
The Illinois rules appear to be nearly identical. (33) For example, in People v Manning, (34) the Illinois Supreme Court rejected the defendant's claim that his lawyer was ineffective because he didn't tell him about the possibility of a guilty-but-mentally ill verdict before the client pleaded guilty to residential burglary: "Although it might be better practice for defense counsel to inform a defendant of all the pleas reasonably available to him, counsel's failure to do so does not necessarily warrant a finding of deficient performance." (35)
These lower court decisions suggest the answer to the question posed whether a lawyer is ineffective if he fails to advise, or wrongly advises, a client about potential adverse consequences of a guilty plea made in exchange for court supervision--must be "no." It is against this backdrop, however, that the Supreme Court's opinion in Padilla v Kentucky "marks a major upheaval in Sixth Amendment law." (36) There, the Court ruled that misinforming a client that his guilty plea could lead to deportation was ineffective assistance of counsel.
Immigration/deportation and Padilla.
Before Padilla, there was no consensus whether lawyers were constitutionally obliged to discuss deportation issues with their clients, and, if so, what such obligations entailed.
For example, here in Illinois, the supreme court ruled in People v Correa that a lawyer's "erroneous and misleading advice on the crucial consequence of deportation," rendered his client's guilty plea involuntary. (37) Building on Correa, both the first district and second district ruled that a lawyer's failure to inform a client that a guilty plea may result in deportation constituted ineffective assistance of counsel (assuming the issue is material to the client). (38)
Yet a few years later, the Illinois Supreme Court overruled both of these cases. (39) And on the federal side, one district judge recently concluded that, because the constitution did not require lawyers to inform clients of the collateral consequences of a guilty plea, a lawyer wasn't duty-bound to inform the client about deportation. (40)
Mr. Padilla claimed that his lawyer not only failed to inform him that he could be deported as a consequence of pleading guilty, but assured him he wouldn't be deported. In Padilla the Supreme Court ruled that "[i]t is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so 'clearly satisfies the first prong of the Strickland analysis.'" (41)
At least when it comes to deportation, the Sixth Amendment right to the effective assistance of counsel means a lawyer not only must avoid "affirmative misadvice," (42) but has the duty to disclose "that his conviction for drug distribution made him subject to automatic deportation." (43) Writing for the Court, Justice Stevens emphasized that "[w]e have never applied a distinction between direct and collateral consequences to define the scope of constitutionally 'reasonable professional assistance' required under Strickland," but insists the issue "whether that distinction is appropriate" remains open. (44)
In the end, Padilla's case was remanded to a lower court for further fact-finding. Justice Alito and Chief Justice Roberts concurred in the result, but object to what they perceive to be the Court's rejection of "the longstanding and unanimous position of the federal courts ... that reasonable defense counsel generally need only advise a client about the direct consequences of a criminal conviction." (45) Justice Alito calls the Padilla holding a "dramatic departure from precedent." (46) Justices Scalia and Thomas dissented, asserting the Sixth Amendment right to counsel only applies to trials and therefore doesn't reach collateral consequences. (47)
"No logical stopping-point"?
While Justice Stevens points to the "severity of deportation " as a justification for the rule he announces in Padilla, (48) Justice Alito believes it is too much to expect criminal lawyers to become experts in deportation law and worries that Padilla will lead to this result. Lawyers could be held to answer complex questions involving an unfamiliar area of law, for example, identifying when "'[a] disposition that is not a 'conviction,' under state law may still be a 'conviction' for immigration purposes.'" (49)
Justice Scalia warns there is "no logical stopping-point" if lawyers have the duty to advise clients about collateral consequences. (50) The constitutional standard announced in Padilla presumably applies to any circumstance that is "like" deportation. (51) An extended prison term is a severe consequence for a criminal defendant, especially if it is based on a prior misdemeanor supervision, which he successfully completed.
Of course, recidivism isn't inevitable. Defendants may simply have to accept the consequences of their continued bad conduct. Can a lawyer's performance ever violate the prejudice prong of Strickland if the former client had it coming?
For now, Padilla opens the door wide to disgruntled former clients to litigate your competence. And, when it comes to misdemeanor court supervision, some of our formerly "successful" clients undoubtedly will face serious sentencing problems along the lines discussed in this article. After Padilla, a lawyer who tries too hard to "sell" the deal isn't merely performing a disservice--he might be incompetent.
(1.) 730 ILCS 5/5-6-3.1(f) (emphasis added).
(2.) See 18 USC 3553(a)(4)(A) and (b)(1).
(3.) See United States v Booker, 543 US 220 (2005).
(4.) United States Sentencing Guidelines (hereinafter USSG) [section] 4A1.1(c) (emphasis added).
(5.) USSG [section] 4A1.2(a)(1).
(6.) USSG [section] 4A1.1, Application Note 3.
(7.) See USSG [section] 4A1.2(f) and Application Note 9.
(8.) 148 F3d 832, 839 (7th Cir 1998).
(9.) United States v Jones, 448 F3d 958, 961 (7th Cir 2006) (emphasis added).
(10.) USSG [section] 4A1.3(b) authorizes judges to grant a 1-level downward departure where the defendant's score overrepresents the seriousness of his criminal history.
(11.) See 21 USC [section][section] 841(b)(1)(A)(iii) and 846.
(12.) A statutory safety valve, 18 USC [section] 3553(f) applies to select controlled substance offenses and "allow[s] certain non-violent first-time drug offenders to avoid the application of statutory minimum mandatory sentences if they cooperated with the government." United States v Olivas-Ramirez, 487 F3d 512, 516 (7th Cir 2007), quoting US v Alvarado, 326 F3d 857, 860 (7th Cir 2003). USSG [section] 5C1.1 implements the safety valve.
(13.) Jones, 448 F3d at 959.
(14.) Id at 959-61.
(15.) USSG [section][section] 2B2.1(a) and (b)(2)(A).
(16.) USSG [section] 4A1.1(d).
(17.) 108 F3d 723, 725 (7th Cir 1997).
(18.) Burke, 148 F3d at 838.
(19.) In United States v Pech-Aboytes, 562 F3d 1234, 1240 (10th Cir 2009), the tenth circuit, as a matter of federal law, refused to follow a state court's nunc pro tunc probation order. See also USSG [section] 4A1.1(d).
(20.) See USSG [section] 5K1.1.
(21.) USSG [section] 4A1.2(j).
(22.) 989 F2d 261, 263 (7th Cir 1993).
(23.) See Custis v United States, 511 US 485, 487 (1994) and Ryan v United States, 214 F3d 877, 877878 (7th Cir 2000) (28 USC [section] 2255 proceeding).
(24.) Johnson v United States, 544 US 295 (2005) (petitioner who waited 21 months before moving to vacate was not diligent).
(25.) 20 ILCS 2630/5.
(26.) People v Howard and Holland, 233 Ill 2d 213, 909 NE2d 724 (2009) (upholding denial of expungement for two defendants, each of whom had received a gubernatorial pardon).
(27.) Strickland, 466 US 668 (1984).
(28.) Hill v Lockhart, 474 US 52, 59 (1985).
(29.) United States v Jordan, 870 F2d 1310, 1317 (7th Cir 1989), quoting Brady v United States, 397 US 742, 755 (1970), and US v Suter, 755 F2d 523, 525 (1985).
(30.) Virsnieks Smith, 521 F3d 707 (7th Cir 2008).
(31.) Julian v Bartley, 495 F3d 487, 495 (7th Cir 2007).
(32.) 169 F3d 1049, 1053-54 (7th Cir 1999).
(33.) See People v Williams, 188 Ill 2d 365, 372, 721 NE2d 539, 544 (1999) (trial court must ensure that a defendant understands the direct consequences of his plea) (superseded by statute).
(34.) 227 Ill 2d 403, 883 NE2d 492 (2008).
(35.) Id at 418, 883 NE2d at 502.
(36.) 130 S Ct 1473, 1491, 176 L Ed 2d 284, 304 (2010) (Alito and Roberts concurring).
(37.) 108 Ill 2d 541, 553, 485 NE2d 307, 312 (1985).
(38.) People v Padilla, 151 Ill App 3d 297, 502 NE2d 1182 (1st D 1986); People v Miranda, 184 Ill App 3d 718, 540 NE2d 1008 (2d D 1989).
(39.) People v Huante, 143 Ill 2d 61, 571 NE2d 736 (1991), which also suggested that a defendant, whose conviction appears to have been inevitable, could not meet Strickland's prejudice test. Haunte has been superseded by statute. See People v Delvillar, 235 Ill 2d 507, 922 NE2d 330 (2009).
(40.) Sasonov v United States, 575 F Supp 2d 626 (D NJ 2008).
(41.) Padilla, 130 S Ct at 1484,176 L Ed 2d at 297, quoting Hill v Lockhart, 474 US 52, 62 (White concurring).
(42.) Padilla at 1492, 176 L Ed 2d at 296.
(43.) Id at 1478, 176 L Ed 2d at 300.
(44.) Id at 1481, 176 L Ed 2d at 293. Indeed, several years earlier Judge Kennelly had written that it was "not entirely clear" why the validity of a Strickland claim ought to depend on this distinction between direct and collateral consequences. United States v Jimenez, 2005 WL 1503123 (ND Ill).
(45.) Padilla at 1487, 176 L Ed 2d at 300 (Alito and Roberts concurring) (Emphasis in original).
(46.) Id at 1488, 176 L Ed 2d at 300 (Alito and Roberts concurring).
(47.) Id at 1494, 176 L Ed 2d at 308 (Scalia and Thomas dissenting).
(48.) Id at 1486, 176 L Ed 2d at 284.
(49.) Id at 1490 FN2, 176 L Ed 2d at 303 FN2 (citation omitted).
(50.) Id at 1496, 176 L Ed 2d at 309 (Scalia and Thomas dissenting).
(51.) Id at 1484, 176 L Ed 2d at 297.
Gary Ravitz <firstname.lastname@example.org>, a principal in the Chicago firm of Ravitz & Palles, PC, is a trial and appellate lawyer who concentrates on criminal and civil rights matters.
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|Title Annotation:||ineffective assistance of counsel|
|Author:||Ravitz, Gary J.|
|Publication:||Illinois Bar Journal|
|Date:||Jul 1, 2010|
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